Periyanayagam v. Rajendran & Ors.

JUDGMENT

1. These second appeals have been preferred by Periyanayagam, who figured as second defendant in O S. 290 of 1978, District Munsif's Court, Cuddalore, and the plaintiff in O.S 97 of 1977 before the same court. S.A 1668 of 1980 arises out of O.S 290 of 1978 wherein the reliefs of declaration of title and recovery of possession with reference to two items of properties had been prayed for by respondents 1 and 2 therein. S.A 1669 of 1980 arises out of O.S 97 of 1977 instituted by the 2nd defendant in O.S 290 of 1978 with reference to one out of two items forming the subject matter of O.S 290 of 1978 praying for the relief of permanent injunction. The two items of properties forming the subject-matter of these second appeals are of an extent of 1.06 acres in survey No. 1087/1, and western 8.5 cents out of a total extent of 2.85 acres in survey No. 1082/6 in the hamlet of Vekakollai. The 3rd respondent in S.A 1668 of 1980, namely, Pachamuthu, is the father of respondents 1 and 2, therein and first respondent in S.A 1669 of 1980. Under Ex. A1 dated 27.7.1966 Pachamuthu acting as the guardian of his minor sons Rajendran and Rajagopal, purchased item 1 of the suit properties from one Narayanasami for a consideration of Rs. 500. This sale deed, it is not in dispute, has been attested by the appellant in these second appeals. Likewise, under Ex. A2 dated 6.4.1967, item 2 of the suit properties was purchased by Pachamuthu acting as the guardian of his minor sons, Rajandran and Rajagopal for a consideration of Rs. 150. On 10-2-1969, under Ex. B1 Pachamuthu purported to sell both the items of properties purchased under Exs. A1 and A2 in favour of the appellant for a consideration of Rs. 500. The sale deed recited purchase of other properties as the reason for the sale. On 11.2.1977, first respondent in these second appeals, under Ex. A3, purported to lease out item No. 1 in favour of Murugavel, who figures as 4th respondent in S.A 1668 of 1980 and as 2nd respondent in S.A 1669 of 1980. Immediately thereafter, the appellant instituted on 19.2.1977, O.S 97 of 1977 praying for a decree for permanent injunction against respondents 1 and 4 in S.A 1668 of 1980 and the respondents in S.A 1669 of 1980 on the ground that he had purchased that item under Ex. B1 dated 10.2.1969 and his possession and enjoyment thereof was attempted to be interfered with unlawfully by the lease under Ex. A3. On 1-7-1978, respondents 1 and 2 in S.A 1668 of 1980 instituted O.S 290 of 1978 praying for a declaration of their title to the suit properties and for recovery of possession. According to them, they were the owners of the properties, but that their father had sold the suit properties on 10.2.1969 while they were minors without the prior permission of the Court and by reason of the execution of the lease deed on 11.2.1977, they had asserted title to the suit properties and since they were not bound by the sale deed executed by their father Pachamuthu and that had also been avoided rendering it a void transaction, they continued to retain title over the properties and on that footing prayed for the reliefs of declaration and injunction. In the suit O.S 97 of 1977, the defence was that the sale deed executed by Pachamuthu was voidable and had also been avoided thereby rendering it void since its inception and, therefore, the appellant did not have title by reason of the purchase under Ex. B1. The defence of the appellant in O.S 290 of 1978 was that he had acquired title to the suit properties by purchase from Pachamuthu under Ex. B1 dated 10.2.1969 and was also in possession as a lawful owner thereof. Since common questions arose for decision in O.S 97 of 1977 and 290 of 1978, they were tried together and the evidence recorded in O.S 290 of 1978 was treated as the evidence in O.S 97 of 1977.

2. On a consideration of the oral as well as the documentary evidence, the trial court concluded that the sale deed under Ex. B1, dated 10-2-1969 by Pachamuthu was a voidable transaction and required to be set aside and as respondents 1 and 2 in S.A 1668 of 1980 had not prayed for the relief of setting aside the sale under Ex. B1, they were not entitled to the relief of declaration of their title to the suit properties. Regarding item 1 of the suit properties, as possession of that item was admitted to be with the appellant in these second appeals, the trial Court held that the respondents in S.A 1669 of 1980 could not disturb his possession and on those conclusions, a decree was granted in O.S 97 of 1977 while O.S 290 of 1978 was dismissed Aggrieved by this, respondents 1 and 2 in S.A 1668 of 1980 and the first respondent in S.A 1669 of 1980 preferred A.S No. 188 of 1979 and 64 of 1980 before the Sub Court, Cuddalore,. The learned Subordinate Judge was of the view that the institution of the suit O.S 290 of 1978 was itself an act of avoidance rendering the sale under Ex. B1 as void since its inception and, therefore, the suit without a prayer for setting aside the sale under Ex. B1 was maintainable. With reference to item 1 of the suit properties, the possession of the appellant in these second appeals was held to be that of a trespasser and in that view, the lower appellate Court held that no decree for injunction could be granted in favour of a trespasser. On those conclusions, the appeals were allowed and O.S 290 of 1978 was decreed, while O.S 97 of 1977 was dismissed. It is the correctness of this that is questioned in these second appeals.

3. Learned counsel for the appellant strenuously contended that respondents 1 and 2 in S.A 1668 of 1980 were parties to Ex. B1 dated 10-2-1969, though represented by their father and guardian, Pachamuthu and that without praying for the relief of setting aside the sale under Ex. B1, they could not pray for a declaration of their title or even for recovery of possession. Strong reliance in this connection was placed by the learned counsel upon the decision of this Court reported in Sankarayana Pillai v. Kandasami Pillai 1956-2-M.L.J 411=69 L.W 686, and Munusami v. Jayammal 87 L.W 197.. Per contra, learned counsel for respondents 1 and 2 in S.A 1668 of 1980 and for first respondent in S.A 1669 of 1980 submitted that by reason of the provisions of Hindu Minority and Guardianship Act, 32 of 1956 (hereinafter referred to as the Act), a sale by the father, a natural guardian, without permission from court, is statutorily declared to be voidable at the instance of the minor and all that is necessary to avoid such a transaction is an unequivocal act of repudiating it and since that had been done in this case by the execution of Ex. A3 dated 11-2-1977, and by the institution of the suit in O.S 290 of 1978, the sale under Ex. B1 had been avoided rendering it void since its inception and, therefore, there is no need to specifically pray for the relief of setting aside the sale under Ex. B1, before seeking the reliefs of declaration of their title to the suit properties and recovery of possession. Learned counsel distinguished the decisions relied on by the learned counsel for the appellant on the ground that the effect of the provisions of the Act had not been considered therein and further submitted that the principle laid down in G. G. Annamalai Pillai v. District Revenue Officer 1985 2—M.L.J 400=98 L.W 413., and Santha v. Cherukutti A.I.R 1972 Ker. 71. would apply rendering it unnecessary to specifically pray for the relief of setting aside Ex. B1. It was the further submission of the learned counsel that if necessary even at the second appellate stage, the plaint could be amended by the addition of a new prayer, especially when all the allegations had already been made in the plaint. The decision in Lakshminarasimhachari v. Agasthesewaraswamivaru A.I.R- 1950 S.C 622., was pressed into service in this connection.

4. Before proceeding to consider the contentions thus raised, it would be necessary to refer to a few undisputed facts as well as the impact of the provisions of the Act on transactions of the kind we have in this case. There is no dispute that under Ex. A1 and A2, the properties were purchased for the benefit of the minor sons of Pachamuthu, their father, who acted as their guardian in those transactions, and the properties belonged to the minors. Likewise, there is no dispute that minors were represented by their father Pachamuthu in the sale under Ex. B1 dated 10-2-1969, in favour of the appellant in these second appeals. That under Ex. A3 dated 11-2-1977 item 1 of the suit properties was leased out by the first respondent in S.A 1688 and 1669 of 1980 in favour of Murugavel is also not in dispute. That the suit for recovery of possession, namely O.S 290 of 1978 had been instituted by the first respondent in S.A 1668 and 1669 of 1980 on 1-7-1978 within three years of his attaining majority as per Art. 60 of the Limitation Act, 1963, and that his brother, the second respondent in S.A 1668 of 1980, is still a minor, are not in dispute. That on and from 25-8-1956 the provisions of the Act governed the minors, their guardian as well as the transaction entered into by him is also beyond controversy. Under S 6 of the Act, Pacharnuthu, the father, was the natural guardian of the minors with respect to their person as well as their property. S. 8(1) of the Act sets out in general the scope of the powers of a natural guardian, subject to the other provisions of that section. S. 8(1) of the Act, however, imposes a restriction upon the powers of a natural guardian in matters relating to mortgage, charge, transfer by sale, gift, exchange or otherwise, or lessee of the property of the minor for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. With reference to the transactions above referred, the natural guardian shall not, without the previous permission of the Court, proceed with them. S. 8(3) of the Act declares the effect of the contravention of sub-sec.(2) of S. 8 of the Act and states that any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or subsection (2) of S. 8 of the Act, is voidable at the instance of the minor or any person claiming under him. The other provisions of S. 8 of the Act are not necessary for purposes of this case. It is thus seen that there is a statutory declaration regarding the voidable nature of the transactions entered into by a natural guardian, namely, the father without permission from the court with reference to sales, exchange, gift, lease etc, already referred to. On the facts of the present case, it is seen that the sale under Ex. B1 was aot effected by Pachamuthu with the permission of the Court. It therefore, follows that the sale in favour of the appellant is rendered voidable under S. 8(2) of the Act.

5. Even though Ex. BI, is statutorily declard to be a voidable transaction, there must be some manifestation, by an act or omission, of an unequivoacal intention, on the part of the minors or the erstwhile minors, avoiding or repudiating the transaction for, only then, such avoidance will result in rendering the transaction void since its inception. It is in this connection a reference may be made to a passage in Salmond on Jurisprudence, 11th Edn., page 387 to the following effect;—

“A valid agreement is one which is fully operative in accordance with the intent of the parties. A. void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power, the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy which has earlier been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it.”

Adverting to the manner of avoidance of a voidable transaction, Trevelyan on the Law relating to Minors, 4th Edn., page 202 observes as follows—

“A transaction which is voidable at the instance of the minor may be repudiated by any act or omission of the late minor, by which he intends to communicate the repudiation, or which has the effect of repudiating it; for instance, a transfer of land by him avoids a transfer of the same land made by his guardian before he attained the age of majority.

It is not necessary that he should bring a suit; but a suit to set aside the acts of his guardian during his minority amounts of course to an express repudiation.”

It is thus seen from the passages above that the avoidance or repudiation by a minor' whatever be its form, renders the transaction so repudiated void since its inception. It would also be useful in this connection to refer to the observation of the Full Bench of this Court in Ramaswami Iyengar v. Rangachariar. Though that case related to the question of court fee with reference to the provisions of Court-fees Act, VII of 1870, the Full Bench considered the question whether, under the substantive law by which the party is governed, he is bound to sue for a declaration or cancellation in respect of transactions to which the plaintiff is made a party. In dealing with this, the Full Bench observed at page 41 as follows—

“…He is not bound under the substantive law by which he is governed, to sue for a declaration or cancellation in respect of any of them. The legal position has been correctly explained in Unni v. Kunchi Amma in the following words which were taken from an unreported decision of this Court:—

If a person not having authority to execute a deed, or having such authority under certain circumstances, which did not exist, executes a deed, it is not necessary for persons who are not bound by it to sue to set it aside, for it cannot be used against them. They may treat it as non-existent and sue for their rights as if it did not exist.”

The same principle has been distinctly laid down by the Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi where their Lordships point out the jural basis underlying such transactions. In that case, the reversioner sued for a declaration that a lease granted by the widow of the last male owner was not binding on him and for khas possession. It was objected that the omission to set aside the lease by a suit instituted within the time limited by Art. 91 of the Indian Limitation Act, was fatal to the suit. The following observations which are equally applicable to a father or manager of a joint family are apposite—

“A Hindu widow is not a tenant for life but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions, being complied with. Her alienation is not, therefore, absolutely void but it is a prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any courts, and he shows his election to do the latter by commencing an action to recover possession of the property (underlining mine). There is in fact, nothing for the court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint a declaration that the ijara was in operative as against them as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession leaving it to the defendants to plead and (if they could) prove the circumstances which they relied on for showing that the ijara or any derivative dealings with the property were not in fact voidable but were binding on the reversionary heirs.‘In such cases even if the plaint contains a prayer for a declaration or cancellation, there is good reason for holding it to be one for a purely incidental, but unnecessary relief, (underlining mine)”.

The above extracted observations of the Full Bench referring to two other earlier decisions; clearly establish that an election to avoid may as well be by instituting an action to recover possession of the property. It would, therefore in my view suffice if the transaction under Ex. B1 is avoided by the institution of the suit for recovery of possession.

6. In the plaint in O.S 290 of 1978 in paragraph 3, it has clearly been stated that the sale under Ex. B1 is void because of lack of sanction from court and that the plaintiffs are not bound by the sale deed. Further, it has also been stated in paragraph 4 that the first plaintiff in the suit on attaining majority, had asserted his title and possession over the suit properties by execution of the lease deed Ex. A3 dated 11-2-1977. The circumstance that the plaintiffs had joined together in instituting the suit praying for the reliefs of declaration of their title to the suit properties and for recovery of possession is sufficient to repudiate the sale under Ex. B1. Such repudiation had been reinforced, by the execution of Ex. A3, dated 11-2-1977 earlier, by which one of the plaintiffs immediately on attaining majority, purported to lease out the properties in favour of a third party asserting title to the suit properties so leased out in himself. Such assertion is his repudiation of the sale under Ex. B1 in so far as he is concerned. Thus, by the execution of Ex. A3 and by the very institution of the suit O.S 290 of 1978 the transaction under Ex. B1, which is statutorily declared to be voidable, had been repudiated or avoided and the effect of such repudiation, as noticed earlier, is to render it void ab initio and that is how the plaint in O.S 290 of 1978 had proceeded in paragraph 3 thereof. That this is so is also made clear by a decision of the Division Bench of this Court in Sundararao v. Commissioner of Income-tax, wherein it has been pointed out that the effect of the avoidance is to get rid of the transaction, with the result that in law, it is as if the transaction had never taken place. To similar effect is the decision of a Division Bench of this Court reported in G. G. Annamalai Pillai v. District Revenue Officer, though it arose out of proceedings under Art. 226 of the Constitution of India relating to the validity of leases executed contrary to the provisions of S. 8(2) of the Act. In Shantha v. Cherukutti, it has been held that it would suffice to avoid a transaction declared by S. 8(3) of the Act, as voidable by conduct and there is no need to file a suit for avoiding the transfer. This decision also supports the contention of the learned counsel for respondents 1 and 2 in S.A 1668 of 1980 and the first respondent in S.A 1669 of 1980. However, it is necessary to refer to the decisions strongly relied on by the learned counsel for the appellant. Sankaranarayana Pillai v. Kandasamia Pillai turned purely upon the question of court fee with reference to the provisions of the Act had not come into force when that decision was rendered. The Court, therefore, did not have occasion to consider the impact of the provisions of the Act on transactions entered into by natural guardians in contravention of S. 8(1) and (2) of the Act and, therefore, the question of avoidance either by entering into a transaction repudiating transactions entered into by the guardian or by the institution of a suit for recovery of possession simpliciter was not dealt with. Therefore, the principle of that decision cannot be applied to this case. Munusami v. Jayammal, primarily concerned itself with the period of limitation for setting aside a transfer of property. No doubt, an argument was raised that there is no necessity for a minor to set aside the sale effected, if the sale had been effected in his name by his mother and guardian without the permission of the court. Even in that decision, the court did not go into the question as to what would constitute an avoidance and whether that could be done generally by the institution of a suit for recovery of possession or it specifically required praying for the relief of setting aside the transfer. The exercise of an option to avoid can be manifested in any manner, as no particular method of avoidance has been prescribed,. In some case, such avoidance may be by specifically praying for the relief of setting aside the transaction and seeking further or other reliefs. In other, such avoidance may take the shape of treating the transaction as if it is not in existence and on that footing proceeding to ask for other available reliefs. In Kallubandi Nanjamma v. Katha Rangappa 66 L.W 729 = I953-2-M.L.J 737., Venkatarama Ayyar, J. held that a decree holder entitled to avoid a transfer of Property Act, (which is voidable at the option of a creditor defeated or delayed) elected to do so by bringing the properties to sale in execution of the decree and that avoidance would ensure for the benefit of others. The Supreme Court, in Abdul Shukoor Saheb v. Papa Rao 1964-1-M.L.J 49 S.C, while dealing with the scope of avoidance of a transfer under S. 53 of the Transfer of Property Act, pointed out that no particular method of avoidance had been prescribed and that a creditor knowing of a transfer applied for attachment, that is evidence of his intention to avoid it. It is thus clear by established by the aforesaid decision that avoidance or repudiation need not necessarily be only by way of specifically praying for the relief with regard to setting aside a transaction repudiated, but it can take diverse forms as well. On the facts of this case, as seen earlier, under Ex. A3 dated 11.2.1977, there has been an avoidance of the transfer by one of the plaintiffs asserting his title to the properties dealt with thereunder despite Ex. B1 executed by the father as his guardian and this is sufficient avoidance or repudiation. In any event, the allegations in the plaint referred to earlier would clearly amount to a repudiation of the sale executed by the father of the minors under Ex. B1 and a formal prayer for the relief of setting aside Ex. B1 is, on the facts of this case, wholly unnecessary. On the repudiation contained in Exs. A3 and in the plaint, the sale under Ex. B1, had been avoided since its inception and that would have the effect of rendering it void and there was, therefore, no impediment in the plaintiffs securing the reliefs of declaration of their title to the suit properties and also recovery of possession as prayed for by them in O.S 290 of 1978. It follows that if the plaintiffs in O.S 290 of 1978 are entitled to the reliefs prayed for by them, the plaintiff in O.S 97 of 1977 is not entitled to the relief of permanent injunction. The lower appellate Court was right in its conclusion that the appellant in these second appeals cannot claim any title to the suit properties on the strength of Ex. B1, and also cannot be permitted to maintain his possession of the suit properties. Consequently, the second appeals fail and they are dismissed with costs in S.A No. 1668 of 1980 only.

VCS/RR